Page 1 of 26
Conduct and Competence Committee
Substantive Hearing
20 February – 3 March 2017, 5- 6 June 2017
Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ
Name of registrant: Ms Erzsebet Kari NMC Pin: 87E0787E Parts of the register: RN3, Registered nurse (sub part 1) RN4, Registered Nurse (sub part 2) Mental Health (5 February 2000) Mental Health (25 July 1989) Area of registered address: England Type of Case: Misconduct Panel Members: Matthew Fiander - Lay (Chair)
Marian Robertson - Registrant member Linda Stone - Lay member
Legal Assessor: John Bromley-Davenport QC Panel Secretary: John Barker/ Lucy Eames Nursing & Midwifery Council: Represented by Paul Andrews,
Counsel instructed on behalf of the Nursing and Midwifery Council Regulatory Legal Team.
Ms Kari: Not present or represented, but took
part via telephone link. Facts proved by way of admission: 1.1 and 2 (in its entirety) Facts proved: 1.3, 1.4 Facts not proved: 1.2 Fitness to practise: Impaired Outcome: Caution Order, 5 years Interim Order: N/A
Page 2 of 26
This case is linked with that of another registrant, Registrant B.
Service of Notice of Hearing
The panel was informed at the start of this hearing that Ms Kari was not in
attendance and was not represented in her absence.
The panel was informed that the notice of this hearing was sent to Ms Kari on 17
November 2016 by recorded delivery and first class post to her address on the
register.
The panel accepted the legal assessor’s advice that a notice of hearing should be in
accordance with Rules 11 and 34 of The Nursing and Midwifery Council (Fitness to
Practise) Rules Order of Council 2004 (as amended February 2012) (The Rules):-
11. (2) The notice of hearing shall be sent to the registrant—
(b) in every case, no later than 28 days before the date fixed for the
hearing.
11. (3) The Notice of hearing shall-
(b) where the Committee is to consider the allegation at an initial
hearing, contain a charge particularising the allegation, and-
(i) where it is alleged that the registrant has committed misconduct or
received a criminal conviction, particularising the alleged facts upon
which the allegation is based, or
(ii) in any other case, setting out the grounds or alleged facts in support
of the allegation;
34. (1) Any notice of hearing required to be served upon the registrant shall
be delivered by sending it by a postal service or other delivery service in
which delivery or receipt is recorded to,
(a) her address in the register
Page 3 of 26
The panel was satisfied that a notice of this hearing was sent to Ms Kari on 17
November 2016, and that the rules of service have been complied with. It was
therefore satisfied that service had been effected in accordance with the rules.
Decision on whether to proceed in Ms Kari’s absence
Mr Andrews, on behalf of the NMC, submitted that it was in the interests of the public
and of public protection to proceed in Ms Kari’s absence. He referred the panel to a
letter from Ms Kari’s legal representatives dated 17 February 2017 in which they
stated:
“I have received instructions from my client that she will not be
represented and nor will she be able to attend the hearing which is due to
commence on the 20th February….My client does wish for the Tribunal to
consider a bundle of documents”.
In light of this communication from Ms Kari’s legal representatives, Mr Andrews
submitted that it was clear she did not intend to attend the hearing. He highlighted
the fact that neither Ms Kari nor her legal representatives had made an application to
adjourn proceedings, but had submitted a significant amount of paperwork
addressing the charges.
Mr Andrews submitted that service had been effected in accordance with the Rules
and that there is a clear public interest in dealing with this matter expeditiously. As
such Mr Andrews stated that the panel can reasonably come to the conclusion that
Ms Kari has voluntarily absented herself.
The panel heard and accepted the advice of the legal assessor as to how to exercise
its discretion as to whether to proceed in Ms Kari’s absence. The panel took into
account that the discretion to proceed in absence must be approached with the
utmost care and caution, as referred to in the case of R. v Jones (Anthony William),
(No.2) [2002] UKHL 5.
Page 4 of 26
The panel was satisfied that notice had been served in compliance and accordance
with the Rules and that Ms Kari was aware of today’s hearing. It had regard to the
communication from her legal representatives, namely that Ms Kari would not be
attending the hearing and would not be represented in her absence, nor would they
be making an application to adjourn the hearing. The panel considered this
communication to demonstrate that Ms Kari had voluntarily absented herself from
the hearing. However, the panel decided to contact Ms Kari through an NMC case
officer to ensure she was aware that she could take part in the hearing via a
telephone link. Ms Kari indicated to the panel that she was content for the hearing to
proceed without her being present, but that she would like to give oral evidence by
telephone once the NMC had closed its case. The panel acquiesced to this request
and decided to proceed in Ms Kari’s absence, but contact her later in the week in
order for her to give her oral evidence. The panel considered there to be a clear
public interest in dealing with this case expeditiously. It noted the age of the
allegations and it was in the interests of public protection that it be heard without
further delay. The panel considered in all the circumstances of this case that any
prejudice to Ms Kari was outweighed by the public interest considerations.
Accordingly the panel decided to proceed in Ms Kari’s absence.
Charges
That you, a Registered Nurse, whilst employed by Care UK at the Hollins Park Care
Home ("the Home") as the Assistant Manager:
1. Having been made aware of the following allegation/s of abuse, did not, within
24 hours, ensure a referral was made to Cheshire East Council Social
Services Adult Protection Team ("Safeguarding"):
1.1 Staff Member 7 pulled Resident A, in approximately August 2013
1.2 Staff Member 7 slapped Resident A, on an unknown date
1.3 Staff Member 1 and/or 11 locked Resident A in a room, on an unknown
date
1.4 Staff Member 7 pushed Resident A onto a bed, on an unknown date.
Page 5 of 26
2. In regard to Resident B:
2.1 During November 2013, on one or more occasions, failed to ensure
that the GP’s advice regarding the insulin prescribed for Resident B
was documented in Resident B’s care plan.
2.2 On or about 26 November 2013, upon discovering that Resident B's
blood glucose level was in excess of 30 mmol:
i. Failed to test for ketones in Resident B’s urine;
ii. Failed to escalate, as soon as practicable, Resident B’s
condition to a doctor
AND in light of the above your fitness to practise is impaired by reason of your
misconduct.
Admissions
At the outset of the hearing Mr Andrews informed the panel that in her response to
charges form as well as in the various documents she has submitted, Ms Kari admits
the factual allegations of charges 1.1, 1.4 and 2.
When Ms Kari gave oral evidence she indicated that she did not admit the facts of
charge 1.4, if it related to a separate occasion and event to that set out in charge 1.1.
Mr Andrews made it clear that the NMC position was that these two charges related
to entirely separate occasions. To ensure the hearing was fair the panel decided that
it would make its own determination in relation to charge 1.4.
Accordingly the panel found charges 1.1 and 2 proved by way of admission.
Background
Ms Kari was employed by Care UK and, until approximately 30 May 2014, as the
Deputy Manager of the Hollins Park Care Home ("the Home"). Her overall position
involved overseeing clinical aspects of care at the Home including care plan
documentation, risk assessments and medication.
Page 6 of 26
During the course of an inspection by the Care Quality Commission ("CQC"),
completed by Ms 11 on 1 October 2013, a number of allegations of cases of abuse
came to light involving members of staff at the Home and residents in their care.
Allegations were brought to Ms 11's attention by a number of members of staff at the
Home. It was alleged that certain members of staff had physically abused vulnerable
residents, including those suffering with dementia. It was further alleged that
residents had been locked within their rooms.
Further investigations revealed that the alleged abuse, which appears to have taken
place during 2013, had not been the subject of referral(s) to Cheshire East Council
Social Services Adult Protection Team ("Safeguarding"). The concern was therefore
that allegations of abuse by members of staff were not referred to Safeguarding.
As part of the Care UK response to the alleged abuse, an investigation into Ms Kari’s
conduct was completed by Ms 8, Manager of another Home operated by Care UK.
As part of her investigation, Ms 8 particularly examined the care given to Resident B
and the management of her blood glucose level and diabetes condition.
It is alleged that on 26 and 29 November 2013, whilst Ms Kari was responsible for
Resident B's care, her blood glucose level was such as to require a referral of her
condition to be made to a doctor. It is alleged that such a referral was not completed
by Ms Kari meaning that medical attention was not provided when necessary,
causing an increase in risk of hyperglycaemia and ketoacidosis a potentially life
threatening condition.
In addition to the investigations involving allegations of abuse, and the management
of Resident B's care, the NMC investigation has also considered the care delivered
to Resident A, who resided at the Home between 18 April 2013 and 3 October 2013.
Resident A was admitted to the Home suffering from multiple disabling conditions
including Dementia.
Over the course of Resident A's time at the Home, she sustained a number of falls
culminating, in what was diagnosed at hospital on 3 October 2013 as a fractured
Page 7 of 26
skull. Upon her discharge from hospital on 30 October 2013, Resident A was placed
at another Nursing Home, where she remained until her death the following year.
At the Inquest into her death the Coroner's findings did not extend to a finding of
neglect on the part of Home staff.
Determination and reasons on the finding of facts
In reaching its decision on the allegations, the panel has taken account of all the
evidence in this case and the submissions of the NMC and Ms Kari.
The panel has taken into account that the burden of proof rests on the NMC, and
that the standard of proof is the civil standard, namely the balance of probabilities.
This means that the facts will be found proved if the panel is satisfied that it was
more likely than not that the incidents occurred. The panel accepted the advice of
the legal assessor.
The legal assessor reminded the panel of Rule 31. To be admissible the evidence
must pass the test of relevance and fairness. The fact that evidence is hearsay and
cannot be tested by cross examination goes to the weight to be given to such
evidence.
The legal assessor also explained the significance of varying degrees of hearsay
present in this case. There was direct first hand hearsay, for example from Ms 13 to
Ms 5; there was second hand hearsay originating for example from Mr 14 and
reported to Ms 5 by Ms 13; it was important to recognise such evidence for what it
was and to attach no more weight to it than was fair in all the circumstances.
The legal assessor further advised that the panel should have regard to the
judgment of Mitting J in the case of Turner & White v NMC [2014] EWHC 520
(Admin), particularly in relation to anonymous hearsay such as that contained in
paragraph e(ii) of the statement of Ms 11 (ex.7, p.68). Each case is fact specific and
there is no requirement to exclude anonymous hearsay as a matter of principle. It is
Page 8 of 26
necessary, however, to exercise particular caution before placing reliance on
anonymous hearsay. The reason for this is that not only is there no chance to
challenge the evidence by cross examination, but the registrant is unable to meet the
evidence with anything more than bare denial. The anonymity prevents the registrant
from advancing any informed case as to why a particular witness might have a
hostile reason or motive for giving the evidence, or to make other enquiries which
might undermine the anonymous hearsay.
As with all aspects of hearsay evidence it was important for the panel to exercise
great care and to consider in each instance whether the hearsay is supported in
whole or in part by other evidence.
The panel should also ask itself what, if any, steps have been taken to identify and
secure the attendance of the hearsay witnesses. If the NMC had made all
reasonable efforts to afford the opportunity to cross examine the witness without
success, then the application to admit hearsay would have a stronger basis. The
concept of fairness as set out in Rule 31(1) includes the conduct of the parties and
their approach to producing evidence, per Pill J in NMC v Ogbonna [2010] EWCA
Civ. 1216.
The legal assessor also advised the panel to bear in mind that Ms Kari was of good
character; had many years’ experience of nursing; and had produced references as
to her character and her nursing skills. This was important in two respects: (1) the
good character of Ms Kari is important when the panel considers her credibility as a
witness; (2) her character and references were also important in assisting the panel
to determine whether it was likely that she would do any of the things alleged against
her.
That you, a Registered Nurse, whilst employed by Care UK at the Hollins Park Care
Home ("the Home") as the Assistant Manager:
1. Having been made aware of the following allegation/s of abuse, did not, within
24 hours, ensure a referral was made to Cheshire East Council Social
Services Adult Protection Team ("Safeguarding"):
Page 9 of 26
1.1 Staff Member 7 pulled Resident A, in approximately August 2013 –
found proved by way of admission
1.2 Staff Member 7 slapped Resident A, on an unknown date – found not
proved
The panel noted the witness statement of Ms 5 who said:
“On [date unknown] I was working on the ground floor with [Ms 13], Senior
Nurse. [Mr 14] came downstairs to speak with [Ms 13] in private regarding
an incident that he had witnessed. I am aware that [Mr 14] told [Ms 13]
that he had seen Staff Member 7 slap Resident A. [Mr 14] explained that
Staff Member 7 had slapped Resident A between her wrist and her elbow.
I am aware of this incident because I had to go upstairs and work with
Staff Member 7; and [Mr 14] was moved downstairs. I was then asked to
take over from [Mr 14] upstairs.
[Ms Kari] was working with [Ms 13] that evening, so [Ms 13] waited for [Ms
Kari] to start her shift and then told her of the allegations. [Ms Kari]
instantly dismissed the allegation and called [Mr 14] a liar. [Ms 13] was
very upset the evening after the incident as she explained to me that she
had informed [Ms Kari] and she had not believed [Mr 14’s] allegation. [Ms
Kari] told [Ms 13] that [Mr 14] was lying. As far as I am aware there was
not an investigation into this allegation, and there were no statements
requested by the Management team.
…Neither Safeguarding not the Care Quality Commission were informed
of this incident. I did not find out for certain that this allegation was not
reported to Local Authority Safeguarding unit until September 2013…”
(ex.7, p.16, para.5-7)
The panel also had regard to the witness statement of Ms 11:
Page 10 of 26
“I then spoke to [Mr 14], Carer, who had observed Staff member 7 slap
Resident A. [Mr 14] said that he reported this incident to [Ms 13],
Registered Nurse, who then informed [Registrant B]. [Mr 14] was then
interviewed by [Registrant B] regarding this incident and he told me that
he felt intimidated by [Registrant B] and was made to feel racist for raising
the allegation. [Mr 14] informed me that [Registrant B] had asked him
whether he had a problem with Staff Member 7 because of the colour of
his skin. He also stated that he felt worried for his job and therefore
agreed to retract his statement. When I questioned [Registrant B]
regarding this incident she stated the [Mr 14] had agreed to retract his
statement because Resident A was ‘flailing her arms around’ and that
Staff Member 7 was trying to support her. Despite this, there was still an
allegation of abuse made against Staff Member 7 and the CQC and
Safeguarding should have been notified, but they were not. [Registrant B]
should have notified the CQC and Safeguarding of this incident
immediately.” (ex.7, p.66, para.v)
Thus, there is nothing in the account Mr 14 gave to Ms 11, which suggests that he
had made Registrant A aware.
Ms Kari told the panel that this incident was not reported to her and therefore there
was nothing to report to Safeguarding or the CQC.
The panel also heard oral evidence from Ms 5 who said that she saw Ms 13 very
upset in the evening after Ms 13 had reported Mr 14’s concerns to Ms Kari. Ms 5 told
the panel that Ms 13 was crying because Ms Kari had not believed Mr 14’s allegation
that Staff Member 7 had abused Resident A. The panel recognised that Ms 5 was
not a direct witness to either the alleged abuse of Resident A, or to Ms 13’s alleged
reporting to Ms Kari. Therefore her evidence was to be treated as hearsay.
The panel considered Ms 5 to be credible with no motivation to fabricate her
encounter with Ms 13. However, the panel concluded that Ms 5 was not in a position
to evaluate whether Staff Member 7 had actually slapped Resident A and,
importantly, she could not give any evidence as to what Ms 13 reported to Ms Kari.
Page 11 of 26
The panel noted that there was no direct evidence as to what Ms 13 reported to Ms
Kari.
Evaluating the hearsay evidence, the panel was not satisfied that it was of sufficient
quality to find that Ms Kari was told that Staff Member 7 had slapped Resident A.
The panel accepts that Ms 13 may have told Ms Kari something, Ms 5 certainly
believed that she did, but the panel could not be satisfied that what she told Ms Kari
was that Mr 14 had witnessed Staff Member 7 slap Resident A.
The panel had to weigh the unsatisfactory hearsay evidence with Ms Kari’s
vehement denial that she was told that Staff Member 7 had slapped Resident A. The
panel could not be satisfied on the balance of probabilities that the incident was
reported to Ms Kari. It found that she was not aware of the allegation. Accordingly
the panel found charge 1.2 not proved.
1.3 Staff Member 1 and/or 11 locked Resident A in a room, on an unknown
date – found proved
Ms 3 told the panel that resident’s rooms at the Home tended to be locked (when no
one is in them) during the day after a spate of “things going missing”. Residents
could access their rooms if they asked a member of staff for a key.
The panel had regard to the statement of Ms 5:
“On 13 August 2013 [Mr 15] reported to me that he had witnessed Staff
member 11 Carer, and Staff Member 1, Registered Nurse, leave Resident
A’s bedroom and then lock the door. [Mr 15] was working on the first
floor of the Home on this night, and I was on the ground floor. I was in
Resident L's bedroom assisting her with personal care, when I
heard some commotion coming from the first floor. The commotion
was coming from the room above, which was Resident A's bedroom.
[Mr 15] came downstairs to speak to me shortly after I had heard this
commotion, and stated that he had seen Staff Member 1 lock Resident
A's bedroom door. I reported this incident to [Ms 16], Registered
Page 12 of 26
Nurse, who advised me to check the computer for any reports of
fighting between the residents'. Sometimes if the residents' had been
fighting, two members of staff would take the resident into their bedroom
and use calming techniques.
After [Mr 15] had reported this incident to me, I went upstairs to check
whether Resident A's bedroom door was locked. This was approximately
30 minutes after [Mr 15] had reported the incident to me. As I was
walking towards Resident A’s bedroom door, Staff Member 11 ran
towards me and told me that the door was locked. I checked the handle
and the bedroom door was locked. I unlocked Resident A's bedroom door,
and I walked into her bedroom. Resident A was clearly upset and
distressed as she had been incontinent of urine, and had opened her
wardrobe and emptied it over the floor. I then attended to Resident A's
personal care by changing her incontinence pad and nightwear. However,
she did not have any clean nightwear in her bedroom, so I asked Staff
Member 11 to get this for me from the laundry room. [Mr 15] was in the
corridor outside of Resident A's bedroom when I asked Staff Member 11
to get Resident A some clean nightwear from the laundry room. [Mr 15]
informed me that he had seen Staff Member 11 locking two other
bedroom doors on her way to the laundry room. One of these bedrooms
was Resident B and the other was Resident M”. (ex.7, p.18, para.12)
And
“After this incident I was ignored by several members of staff for months”
You told the panel that this incident was not reported to you and therefore there was
nothing to report to Safeguarding.
It was Ms 5’s evidence that she was told by Mr 15 that Staff Members 1 and 11 had
locked Resident A in her bedroom. Upon hearing this Ms 5 told the panel that she
went to check on the veracity of Mr 15’s claim and found Resident A locked in her
bedroom in a state of distress.
Page 13 of 26
Ms 5 also said that Staff Member 11 told her, whilst she was en route to the room,
that Resident A’s bedroom door was locked. During her oral evidence Ms 5 said that
it was her opinion that Resident A’s bedroom door was locked for at least 30
minutes. The panel noted that in her interview during the Home’s internal
investigation she said the door was only locked for 10 minutes. The panel did not
consider the discrepancy between 10 and 30 minutes to undermine Ms 5’s
credibility. It has been several years since this incident and the subsequent
investigation. The panel concluded that Resident A was locked in her bedroom for a
period of between 10 to 30 minutes.
The panel noted that Ms 5 said during her oral evidence that locking a bedroom door
whilst a resident was inside was a deprivation of their liberty and put the resident at
serious risk of harm, for example in the event of a fire.
Having dealt with this incident Ms 5 told the panel that she made a point of coming in
to the Home on 15 August 2013, which was her day off, to attend the night meeting,
so that she could inform Ms Kari in person of what she had witnessed. When
determining this charge the panel preferred Ms 5’s direct evidence regarding this
incident to Ms Kari’s denial that she was told about Staff Members 1 and 11 locking
Resident A in her bedroom. It considered Ms 5’s account to have been detailed and
it stood up to scrutiny when she was cross examined.
Having found that Ms 5 did report this incident to Ms Kari, thereby making her aware
of an incident of abuse, the panel concluded that it was Ms Kari’s responsibility to
ensure that a referral was made to Safeguarding. Ms Kari was the Deputy Home
Manager and it was her responsibility to report allegations of abuse, as she accepted
in her oral evidence. Accordingly the panel found charge 1.3 proved.
1.4 Staff Member 7 pushed Resident A onto a bed, on an unknown date –
found proved
In her written statement Ms 5 states:
Page 14 of 26
“[Ms 17] stated that she had heard Resident A in distress, as she was
working in the next room. [Ms 17] stated that she walked into Resident A’s
room and witnessed Staff Member 7 push Resident A onto her bed. [Ms
17] said that when she did this he looked upset with Resident A and
agitated, and Resident A was visibly upset as a result of the push”.
The panel accepted the evidence of Ms 11 to the effect that Ms 17 informed her on 1
October 2013 of this incident.
Further, the panel accepted the evidence of Ms 8. She said “[Ms 17] informed me
that she had witnessed Staff Member 7 ‘put his hand on [Resident A’s] chest and
[push] her back onto the bed’”.
Whilst the panel did not receive evidence from Ms 17 it had careful regard to the
evidence of Ms 8 who conducted an investigation interview with Ms 17. Ms 8 had
considerable experience in investigating allegations both in the private care home
sector and the NHS where she held the positon of modern matron. The panel placed
some weight on Ms 8’s assessment of Ms 17 in the investigation interview, who she
assessed as plausible and consistent. Taken together the panel is satisfied that it
could rely upon the account Ms 17 gave to others.
The panel took account of Ms 17’s witness statement taken by Ms 8 during the
Home’s internal investigation:
“[Ms 17] could hear [Resident A] shouting, this was unusual for her, I was
in the room next door and I looked in, he put her legs on the bed, she tried
to sit forward and he [Staff Member 7] put his hand on her chest and
pushed her back onto the bed”. (ex.8, p.106, para.2)
During the Home’s internal investigation Ms 8 spoke to Ms 5 who was also present
on the night in question. Ms 5 told Ms 8 that Ms 17 came to her to ask for advice
having “seen [Staff Member 7] pushing [Resident A] in her seat. He was not using
calming techniques. It was in [Resident A’s] room at the time”. Ms 5 sought advice
and then herself advised Ms 17 to write a statement about what she had seen. Once
Page 15 of 26
Ms 17 had done that, Ms 5 read the statement and saw her post the statement under
the Home Manager’s office door. In addition, Ms 17 spoke to Ms Kari on the
telephone, informing her about what she saw. In her oral evidence Ms Kari accepted
that she had spoken to Ms 17 about this incident, although she believed that it was
she who called Ms 17.
The panel reminded itself that at the outset of this hearing Ms Kari made an
admission to this charge. It is the NMC’s position that this incident occurred on a
separate day to charge 1.1. However, the panel accepted the evidence of Ms 8 that
these incidents occurred on the same day. Ms Kari supported this view.
Having heard all the evidence, the panel considered this incident to have occurred
on the same day as 1.1. Staff Member 7 allegedly pulled Resident A (charge 1.1)
down a corridor, then pushed her into bed (charge 1.4). The panel considered these
to be two separate incidents of alleged abuse during a continuous course of conduct.
The panel concluded that Ms Kari had been informed about this incident. Ms Kari
told the panel that she discussed it by telephone with Ms 17. Having been told about
it she should have reported it to Safeguarding in the same way she has admitted that
she should have reported the allegation of Staff Member 7 pulling Resident A down
the corridor. Accordingly the panel found charge 1.4 proved.
2. In regard to Resident B:
2.1 During November 2013, on one or more occasions, failed to ensure
that the GP’s advice regarding the insulin prescribed for Resident B
was documented in Resident B’s care plan – found proved by way of
admission
2.2 On or about 26 November 2013, upon discovering that Resident B's
blood glucose level was in excess of 30 mmol:
i. Failed to test for ketones in Resident B’s urine – found proved
by way of admission
Page 16 of 26
ii. Failed to escalate, as soon as practicable, Resident B’s
condition to a doctor – found proved by way of admission
Resumed on 5 June 2017
Decision on Service of Notice of Hearing:
The panel was informed at the start of this resumed hearing that Ms Kari was not in
attendance and that written notice of this resumed hearing had been sent to Ms
Kari’s registered address by recorded delivery and by first class post on 20 March
2017. Royal Mail “Track and Trace” documentation confirmed that the notice of
hearing was sent to Ms Kari’s registered address by recorded delivery on that date.
The panel took into account that the notice letter provided details of the allegation,
the time, dates and venue of the hearing and, amongst other things, information
about Ms Kari’s right to attend, be represented and call evidence, as well as the
panel’s power to proceed in her absence. The “Track and Trace” documentation also
indicated that the notice was received on 18 April 2017. Mr Andrews submitted the
NMC had complied with the requirements of Rules 11 and 34 of the Nursing and
Midwifery Council (Fitness to Practise) Rules 2004, as amended (“the Rules”).
The panel accepted the advice of the legal assessor.
In the light of all of the information available, the panel was satisfied that Ms Kari had
been served with notice of this hearing in accordance with the requirements of Rules
11 and 34. It noted that the rules do not require delivery and that it is the
responsibility of any registrant to maintain an effective and up-to-date registered
address.
Decision on proceeding in the absence of the Registrant:
The panel had regard to Rule 21 (2) (b) which states:
Page 17 of 26
“Where the registrant fails to attend and is not represented at the hearing, the
Committee...may, where the Committee is satisfied that the notice of hearing
has been duly served, direct that the allegation should be heard and
determined notwithstanding the absence of the registrant...”
Mr Andrews invited the panel to continue in the absence of Ms Kari on the basis that
she had voluntarily absented herself. Mr Andrews submitted that there was no
reason to believe that an adjournment would secure her attendance on some future
occasion. He informed the panel of an email from Ms Kari, dated 4 June 2017, which
said the following:
‘I am unable to attend the hearing or to be presented due to financial difficulties.
I send my apologies for not being available by phone … I therefore request the
hearing continues to go forward. If there are any questions the panel need me to
answer then if you would kindly email me them I will respond as soon as I pick them
up.’
The panel accepted the advice of the legal assessor. The panel noted that its
discretionary power to proceed in the absence of a registrant under the provisions of
Rule 21 is one that should be exercised “with the utmost care and caution”.
The panel has decided to proceed in the absence of Ms Kari. In reaching this
decision, the panel has considered the submissions of the case presenter, and the
advice of the legal assessor. It has had regard to the overall interests of justice and
fairness to all parties. It noted that:
no application for an adjournment has been made by Ms Kari;
there is no reason to suppose that adjourning would secure her attendance at
some future date;
Ms Kari wishes the hearing to proceed;
There is some disadvantage to Ms Kari in proceeding in her absence. However, in
the panel’s judgment, this can be mitigated.
Page 18 of 26
In these circumstances, the panel has decided that it is fair, appropriate and
proportionate to proceed in the absence of Ms Kari. The panel will draw no adverse
inference from Ms Kari’s absence.
Submission on misconduct and impairment:
Having announced its finding on all the facts, the panel then moved on to consider,
whether the facts found proved amounted to misconduct and, if so, whether Ms
Kari’s fitness to practise is currently impaired. The NMC has defined fitness to
practise as a registrant’s suitability to remain on the register unrestricted.
The panel had sight of an email from Ms Kari, dated 4 June 2017 and her
representative’s letter, dated 6 June 2017.
In his submissions Mr Andrews invited the panel to take the view that Ms Kari’s
actions amounted to a breach of The Code: Standards of conduct, performance and
ethics for nurses and midwives 2008 (the Code). He then directed the panel to
specific paragraphs and identified where, in the NMC’s view, her actions amounted
to misconduct.
Mr Andrews referred the panel to the case of Roylance v GMC (No. 2) [2000] 1 AC
311 which defines misconduct as a word of general effect, involving some act or
omission which falls short of what would be proper in the circumstances. He also
referred the panel to the case of R (on the application of Dr. Malcolm Calhaem) v
General Medical Council [2007] EWHC 2606 (Admin).
He then moved on to the issue of impairment, and addressed the panel on the need
to have regard to protecting the public and the wider public interest. This included
the need to declare and maintain proper standards and maintain public confidence in
the profession and in the NMC as a regulatory body. Mr Andrews referred the panel
to the cases of Council for Healthcare Regulatory Excellence v (1) Nursing and
Midwifery Council (2) Grant [2011] EWHC 927 (Admin).
Page 19 of 26
Mr Andrews submitted that the allegations are serious involving failings in the care of
two vulnerable residents. He added that there was a high level of trust in Ms Kari to
provide the care needed. Mr Andrews submitted that the panel may be satisfied that
Ms Kari has remediated her actions, however, she has not addressed the impact of
them on the public and the wider nursing profession. He therefore submitted that Ms
Kari demonstrates a lack of insight into her failings.
Ms Kari has told the panel that she is currently working as a nurse and submitted a
number of positive references. She has undertaken training courses and there have
been no further issues with her practice since these incidents.
The panel has accepted the advice of the legal assessor.
The panel adopted a two-stage process in its consideration, as advised. First, the
panel must determine whether the facts found proved amounted to misconduct.
Secondly, only if the facts found proved amounted to misconduct, the panel must
decide whether, in all the circumstances, Ms Kari’s fitness to practise is currently
impaired as a result of that misconduct.
Decision on misconduct
When determining whether the facts found proved amounted to misconduct the
panel had regard to the terms of the Code.
The panel, in reaching its decision, had regard to the public interest and accepted
that there was no burden or standard of proof at this stage and exercised its own
professional judgement.
The panel was satisfied that Ms Kari’s actions did fall significantly short of the
standards expected of a registered nurse, and that her actions amounted to a breach
of the Code. Specifically:
The people in your care must be able to trust you with their health and wellbeing
Page 20 of 26
To justify that trust, you must:
• make the care of people your first concern, treating them as individuals and
respecting their dignity
• work with others to protect and promote the health and wellbeing of those in your
care, their families and carers, and the wider community
• provide a high standard of practice and care at all times
• … act with integrity and uphold the reputation of your profession.
1 You must treat people as individuals and respect their dignity.
4 You must act as an advocate for those in your care, helping them to access
relevant health and social care, information and support.
32 You must act without delay if you believe that you, a colleague or anyone else
may be putting someone at risk.
35 You must deliver care based on the best available evidence or best practice.
54 You must act immediately to put matters right if someone in your care has
suffered harm for any reason.
61 You must uphold the reputation of your profession at all times.
Breaches of the Code do not automatically result in a finding of misconduct.
However, the panel considered that charge 2 alone was a serious omission and put
the resident at risk of serious harm. Ms Kari demonstrated a basic failing of care for
a common condition and failed to follow the advice of a GP. Further, in charge 1 the
facts found proved demonstrated an extremely serious departure from what was
required, and expected, of Ms Kari in her role as Deputy Home Manager. Ms Kari
exposed Resident A, an extremely vulnerable resident, to real risk of serious harm.
The panel found that Ms Kari’s actions did fall seriously short of the conduct and
standards expected of a nurse and amounted to misconduct.
Page 21 of 26
Decision on impairment
The panel next went on to decide if as a result of this misconduct Ms Kari’s fitness to
practise is currently impaired.
Nurses occupy a position of privilege and trust in society and are expected at all
times to be professional and to maintain professional boundaries. Patients and their
families must be able to trust nurses with their lives and the lives of their loved ones.
To justify that trust, nurses must be honest and open and act with integrity. They
must make sure that their conduct at all times justifies both their patients’ and the
public’s trust in the profession. In this regard the panel considered the judgement of
Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1)
Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in reaching its
decision, in paragraph 74 she said:
In determining whether a practitioner’s fitness to practise is impaired by
reason of misconduct, the relevant panel should generally consider not
only whether the practitioner continues to present a risk to members of
the public in his or her current role, but also whether the need to uphold
proper professional standards and public confidence in the profession
would be undermined if a finding of impairment were not made in the
particular circumstances.
Mrs Justice Cox went on to say in Paragraph 76:
I would also add the following observations in this case having heard
submissions, principally from Ms McDonald, as to the helpful and
comprehensive approach to determining this issue formulated by
Dame Janet Smith in her Fifth Report from Shipman, referred to above.
At paragraph 25.67 she identified the following as an appropriate test
for panels considering impairment of a doctor’s fitness to practise, but
in my view the test would be equally applicable to other practitioners
governed by different regulatory schemes.
Page 22 of 26
Do our findings of fact in respect of the doctor’s misconduct,
deficient professional performance, adverse health, conviction,
caution or determination show that his/her fitness to practise is
impaired in the sense that s/he:
a. has in the past acted and/or is liable in the future to act so as
to put a patient or patients at unwarranted risk of harm; and/or
b. has in the past brought and/or is liable in the future to bring
the medical profession into disrepute; and/or
c. has in the past breached and/or is liable in the future to
breach one of the fundamental tenets of the medical
profession; and/or
d. …
The panel finds that limbs a, b and c are engaged.
In its consideration of whether Ms Kari has remedied her practice the panel took into
account that in relation to charge 2 she acknowledged at an early stage that she
lacked appropriate training. It noted that she has since undertaken relevant training
and that there have been no further issues of the kind found proved in this case. In
relation to charge 1, the panel had regard to Ms Kari’s reflective accounts which she
submitted as part of her revalidation as a nurse. The panel was satisfied that Ms Kari
has demonstrated sufficient insight into safeguarding and her duty as nurse. It
considered that Ms Kari has further demonstrated insight into her failings by stating
that she has no intention to return to a managerial position in nursing.
The panel considered that Ms Kari has learned from her omissions and has
demonstrated remediation. The panel took into account that there have been no
other issues with Ms Kari’s practice, apart from these incidents, in a 30 year career
as a nurse. It determined that Ms Kari is unlikely to repeat these matters. The panel
therefore decided that a finding of impairment is not necessary on the grounds of
public protection.
Page 23 of 26
The overarching objectives of the NMC are to protect, promote and maintain the
health safety and well-being of the public and patients, and to uphold/protect the
wider public interest, which includes promoting and maintaining public confidence in
the nursing and midwifery professions and upholding the proper professional
standards for members of those professions. The panel determined that, in this case,
a finding of impairment on public interest grounds was required. It considered that in
a case with such serious findings as these, a member of the public would be
shocked if no finding of impairment was made. The panel determined that Ms Kari’s
failings were so far across the threshold of what is expected of a nurse that to find no
impairment would undermine the public’s confidence in the profession and in the
NMC as regulator.
Having regard to all of the above, the panel was satisfied that Ms Kari’s fitness to
practise is currently impaired.
Determination on sanction:
The panel considered this case very carefully and decided to make a Caution Order.
The effect of this order is that Ms Kari’s name on the NMC register will show that she
is subject to a caution order and anyone who enquires about her registration will be
informed of this order.
In reaching this decision, the panel has had regard to all the evidence that has been
adduced and has accepted the advice of the legal assessor. Any sanction imposed
must be appropriate and proportionate and, although not intended to be punitive in
its effect, may have such consequences. The panel had careful regard to the
Indicative Sanctions Guidance (ISG) published by the NMC. It recognised that the
decision on sanction is a matter for the panel, exercising its own independent
judgement.
The panel took into account the following aggravating and mitigating factors:
Aggravating
Particularly vulnerable residents were put at real risk of harm
Page 24 of 26
Failure of basic nursing set out in charge 2
Mitigating
Unblemished career both before and after these incidents
Early admissions on some charges
Number of positive references
Training courses she has undertaken
The panel first considered whether to take no action but concluded that this would be
inappropriate in view of the seriousness of the case. The panel decided that it would
be neither proportionate nor in the public interest to take no further action.
Next, in considering whether a caution order would be appropriate in the
circumstances, the panel took into account the ISG, which states that a caution order
may be appropriate where ‘the case is at the lower end of the spectrum of impaired
fitness to practise and the panel wishes to mark that the behaviour was
unacceptable and must not happen again.’ The panel determined that a caution
order was the least restrictive sanction which marks the public interest in this case.
The panel took into account the positive references including one from Ms Kari’s
current Home Manager, who is a Registered Nurse and one from a Clinical Nurse
Specialist, who had worked with Ms Kari for 6 months at the time of writing the
reference, which stated:
“Since starting work with Joanne I have been impressed with her dedication and
professionalism. She seems to have boundless energy which she channels into her
work effectively ensuring high standards of care and safety on her unit which runs
very smoothly. Her documentation and record keeping is of a very high quality and
always up to date.
“Joanne is kind and approachable and she is a great support to her colleagues,
residents and their families and the home management team. Joanne is an assertive
nurse who will fight to ensure her residents receive the best care and attention and
Page 25 of 26
will never be overlooked due to age nor diagnosis. She genuinely looks beyond the
diagnosis and sees the person. Many of the residents in her care have advanced
dementia and she works hard to ensure they experience a high level of well being.
“Joanne keeps her clinical skills updated and is always very receptive to new ideas
and working practices. Her clinical judgement is sound.”
The panel was aware that there have been no adverse findings in relation to Ms
Kari’s practice either before or since these incidents and the panel has already
concluded that there is little risk of Ms Kari repeating her misconduct.
Whilst Ms Kari had not addressed the panel on her insight, the panel has found the
references to be particularly helpful in this regard. The panel also took into account
Ms Kari’s reflective pieces. Balancing all the information the panel determined that
the case as a whole falls at the lower end of the spectrum of impaired fitness to
practise. However, the panel considered it is necessary to mark that the behaviour
found proved in the decision on facts is unacceptable and must not happen again.
The panel considered whether it would be proportionate to impose a more restrictive
sanction. It determined that conditions of practice would be inappropriate as Ms Kari
has already completed relevant training. The panel therefore considered suspension
but decided that a suspension order would be disproportionate as the public interest
can be addressed through a caution order. It considered that it would be in the public
interest to allow an otherwise good nurse to continue practising.
The panel has decided that a caution order would adequately address the public
interest. For the next 5 years Ms Kari’s employer or any prospective employer will be
on notice that her fitness to practise had been found to be impaired and that her
practice is subject to an order. Having considered the general principles above and
looking at the totality of the findings on the evidence, the panel has determined that
to impose a caution order for the maximum period of 5 years would be the
appropriate and proportionate response. This is the minimum necessary to mark not
only the importance of maintaining public confidence in the profession, but also to
Page 26 of 26
send the public and the profession a clear message about the standards required of
a registered nurse.
At the end of this period the note on Ms Kari’s entry in the register will be removed.
However, the NMC will keep a record of the panel’s finding that her fitness to
practise had been found impaired. If the NMC receives a further allegation that Ms
Kari’s fitness to practise is impaired, the record of this panel’s finding and decision
will be made available to any practice committee that considers the further
allegation.
This decision will be confirmed in writing.
Top Related